It is rare that you will need to call on a witness to testify in your divorce case. You and your spouse can settle most divorce issues without involving someone else in the process. Divorce attorneys commonly gather third-party information when preparing for your divorce. They can use a court order to compel a noncompliant party to provide information without needing them to testify in court. You are more likely to need a witness when you are fighting over parental responsibility for your children or accusing your spouse of misconduct.

Using Witnesses

There are two types of witnesses that can be useful in a divorce case:

• A character witness who can speak personally about you or your spouse; and
• An expert witness on a topic that is relevant to your divorce.

Character witnesses are people who have observed or interacted with you, your spouse or your children. Family members are not convincing character witnesses because they often have a bias towards one of the parties. Close friends, neighbors, work colleagues, and childcare givers are common character witnesses who can speak to your good character or your spouse’s poor character.

A workers’ compensation insurance company will search for reasons that they can deny your claim, including blaming your conduct for your injury. That is why some employers will ask you to submit to a drug test after an injury. According to the Illinois Workers’ Compensation Act, an employee is ineligible for workers’ compensation benefits if their intoxication was the proximate cause of their injury. You can still qualify for workers’ compensation benefits if you failed a drug test, but you will have to prove that your injury was unrelated to the intoxicating substance in your body.

Drug Testing

In September 2011, Illinois changed its burden of proof for intoxication claims in workers’ compensation cases. Previously, employers had to prove that an employee was intoxicated and that the intoxication caused the injury. Now, employees who test positive for drugs bear the burden of proving that they were not intoxicated or that whatever effect the drug had on them did not cause their injury. According to state law, employers can use results from a blood, urine, or breath test as evidence of the presence of:

• Alcohol;
• Cannabis;
• Controlled substances; and
• Intoxicating compounds.

Intoxicating compounds are otherwise legal substances that can cause intoxicating effects, such as huffing chemicals. The law presumes that you were intoxicated if you refuse a drug test after your injury.

Parents send their children to school with the expectation that they will be safe, but accidents occur that may result in a child being injured. When the injury requires extensive medical treatment, you should investigate whether you have a strong case for filing a personal injury lawsuit against the school. School districts in Illinois are required to carry insurance in case they are found liable for a student’s injury. In many situations, Illinois law protects school districts against parents filing personal injury lawsuits unless they can prove willful or wanton conduct by the district or its employees.

Plaintiff’s Burden

Illinois’ Local Governmental and Governmental Employees Tort Immunity Act creates a high burden of proof when plaintiffs file personal injury lawsuits against public entities, such as public school districts. Student injuries are most likely to occur during recess periods, physical education classes and extracurricular athletics. The law states that a school district is not liable for injuries that occur on properties that are meant for recreational activities unless the injury was caused by willful or wanton conduct, which is:

• Intent to cause harm; or
• Conscious disregard for safety.

Willful or wanton conduct is a stricter burden of proof than negligence because it requires proving the defendant’s intent. It is unlikely that a school or its employees would intend to injure a student. Showing that the school was ambivalent towards its students’ safety is more likely but still difficult.

Many police departments have trained K-9 units that alert them to the presence of illegal drugs. In Illinois, dogs are trained to conduct sniff searches for heroin, cocaine, methamphetamine, and cannabis and to give the handler a response when there is a hit. Courts have ruled that using a K-9 unit is not an unreasonable search under the Fourth Amendment of the U.S. Constitution and can create probable cause to conduct a further search for the illegal substances. However, studies show a significant rate of false alerts by K-9 units, which creates doubt about whether an alert from a dog should be enough evidence to allow a police search.

Problem with K-9 Units

Illinois requires dogs in K-9 units to be retested annually to ensure that they are accurate in detecting illegal substances. However, handlers are part of the cause of false alerts in some cases. Dogs are eager to please their handlers and able to pick up on unintentional body language. When a handler is suspicious of a package or vehicle, the dog may give a positive alert in order to affirm that suspicion. The handler can also train the dog to give false alerts by giving it a treat only when it alerts the handler. Despite this potential bias during drug searches, many police departments have not trained their K-9 units to ignore unintentional cues from their handlers.

Court Rulings

The U.S. Supreme Court has consistently trusted the accuracy of K-9 unit searches and considered them unobtrusive in most cases:

An unusual story has emerged about an astronaut who may have committed identity theft against her former wife while on the International Space Station. The former wife filed charges with the Federal Trade Commission, claiming that the astronaut inappropriately accessed her bank account. A computer registered to NASA had accessed the account at a time when the astronaut was preparing for a spacewalk on the station. The FTC is investigating the claim, which the astronaut denies. The former spouses divorced last year and had a bitter custody battle over their son.

Identity theft is a real concern for divorcees because they have shared sensitive personal and financial information with a former spouse who may harbor ill-will towards them. However, protecting your identity is not rocket science. There are common-sense steps you can take to prevent identity theft:

1. Close Your Joint Accounts: Your spouse has equal access to your joint accounts, such as those with banks and credit card companies. You should conduct all of your financial activity through private, individual accounts that your spouse cannot view without your permission or obtaining a court order.
2. Check Your Credit Report: Getting a current credit report serves multiple purposes. It may remind you about a credit account that you opened individually or share with your spouse. You also get a complete picture of your credit history, which may warn you if you have already been a victim of identity theft.
3. Change Your Passwords and PINs: Spouses commonly share their passwords to individual accounts because they trust each other. You should update those passwords to something that your spouse would not be able to guess, which means your passwords should not be based on personal information.
4. Alert Financial Institutions to Your Divorce: Your bank and creditors should know about your impending divorce. Tell them that you do not give your spouse permission to access your individual accounts or to start new accounts or lines of credit in your name.
5. Keep an Eye on Your Accounts: If you are unable to prevent identity theft, your best course of action is to catch it early on. Look for unexplained activity in your accounts, and try to determine the source. You have time to reverse the damage done and hold your spouse accountable.

Contact a McHenry County Divorce Lawyer

Your identity and financial security should be priorities during your divorce. A Crystal Lake, Illinois, divorce attorney at Botto Gilbert Lancaster, PC, can advise you on what action you should take to protect yourself. Schedule a free consultation by calling 815-338-3838.